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Friday, January 30, 2015

Police as Occupying, Standing Army

In my re-reading of the Federalist Papers and the Constitution what stands out is the legitimate fear that many people in this country had of standing armies. One of the reasons for that fear is that the British sent troops to the United States, not just to police our border with the Indians or defend forts, but to police our cities. It was the military that put down demonstrations, arrested thieves, arrested dissidents and policed the Streets. When the Founders talked about the dangers of "standing armies" they were only partly worried about wars conducted abroad but far more worried about troops acting as standing armies of police, occupying and carrying out oppressive laws in the name of the crown.

and sent hither swarms of Officers to harrass our people, and eat out their substance.

It sounds like King George was sending in swarms of Police to patrol our streets. And in the case of Boston, that is exactly what he was doing.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

So what is a police force but a "standing army?" I'm not saying that police force are bad. Neither are standing armies necessarily bad.

In the Federalist Papers Hamilton goes into discussion at length on how the Constitution was aiming at preventing the creation of Standing Armies around the country in the States by forcing States and the Federal Government to work together. Indeed he believed that the constitution prohibited the states from keeping standing armies. The Constitution was aimed at preventing not only the federal Government from behaving tyrannically, but also state Governments. And key to that was prohibiting Standing Armies and limiting the separate power of states to keep them:

“The framers of the existing Confederation, fully aware of the danger to the Union from the separate possession of military forces by the States, have, in express terms, prohibited them from having either ships or troops, unless with the consent of Congress. The truth is, that the existence of a federal government and military establishments under State authority are not less at variance with each other than a due supply of the federal treasury and the system of quotas and requisitions." [Federalist 25]”

The Framers didn't want States or the Federal Government to have large standing armies for the reasons listed in the Declaration of Independence.

"Independent and Superior to Civil Power"

The Declaration of Independence continues:

He has affected to render the Military independent of and superior to the Civil power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws;

giving his Assent to their Acts of pretended Legislation:

By Civil power the founders meant the power of courts and legislature. Military power is the power of administrative law and combines judicial and executive powers in the same person. Military power is bureaucratic and by extension bureaucracies also provide a jurisdiction for judging that is "independent and superior" to civil power.... unless the check of appeal to ordinary courts is available and realistic. A recent decision by the Supreme Court made a distinction between interpreting the law and rewriting the law in a decision against the EPA [UTILITY AIR REGULATORY GROUP v. EPA ]. Without Judicial and legislative oversight over bureaucracy "pretended legislation" tends to substitute for actual regulation. And that is what was happening to the American Colonies in the 1760's and 70's.

And the authors of the Declaration also objected to arbitrary power and impunity for the officers and soldiers of the British military who were quartered in our cities.

For Quartering large bodies of armed troops among us:

For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:

By "Mock trials" as my friend explained, the Declaration was referring to the substitute of "Administrative Law" for "ordinary courts" and jury trials. In Administrative courts, such as the Military has, where trials were conducted by persons who often were the same persons as the prosecution and defense. Hence the expression "mock trial"s.

This quartering was without compensation, mandatory, and essentially was a tax or requisition against the citizens forced to take soldiers into their quarters. It was thus very onerous to citizens. And again, because there was no effective legislative or judicial oversight over the military, they could engage in theft and minor crimes with impunity -- and did.

Authors being Hypocritical

Sadly our own founders were hypocrites on some of this

The Declaration of Independence represents a people resisting slavery and oppression. US politicians were loudest about slavery, partly because they were intimately familiar with it. They understood liberty as an inalienable right largely because they were experts at alienating it and infringing the liberties of minorities and slaves in their home districts and States. Part of the origins of our modern police force were:

"The institution of slavery and the control of minorities, however, were two of the more formidable historic features of American society shaping early policing. Slave patrols and Night Watches, which later became modern police departments, were both designed to control the behaviors of minorities. For example, New England settlers appointed Indian Constables to police Native Americans (National Constable Association, 1995), the St. Louis police were founded to protect residents from Native Americans in that frontier city, and many southern police departments began as slave patrols. In 1704, the colony of Carolina developed the nation's first slave patrol. Slave patrols helped to maintain the economic order and to assist the wealthy landowners in recovering and punishing slaves who essentially were considered property." [http://www.plsonline.eku.edu/insidelook/brief-history-slavery-and-origins-american-policing]

Relationship of Police to Standing Armies

Thus police as standing armies is not a new phenomena. Privatized policing isn't new either. It was abandoned for good reasons. This article notes that policing in America has always had two tracks:

"The development of policing in the United States closely followed the development of policing in England. In the early colonies policing took two forms. It was both informal and communal, which is referred to as the "Watch," or private-for-profit policing, which is called "The Big Stick” (Spitzer, 1979)." [History of Policing Part 1]

The article then notes:

"The watch system was composed of community volunteers whose primary duty was to warn of impending danger. Boston created a night watch in 1636, New York in 1658 and Philadelphia in 1700. The night watch was not a particularly effective crime control device. Watchmen often slept or drank on duty. While the watch was theoretically voluntary, many "volunteers" were simply attempting to evade military service, were conscript forced into service by their town, or were performing watch duties as a form of punishment. Philadelphia created the first day watch in 1833 and New York instituted a day watch in 1844 as a supplement to its new municipal police force (Gaines, Kappeler, and Vaughn 1999)." [History of Policing Part 1]

The Watch members were essentially militia, drafted to local service. But not particularly well trained.

"Augmenting the watch system was a system of constables, official law enforcement officers, usually paid by the fee system for warrants they served. Constables had a variety of non-law enforcement functions to perform as well, including serving as land surveyors and verifying the accuracy of weights and measures. In many cities constables were given the responsibility of supervising the activities of the night watch." [History of Policing Part 1]

The constables were essentially their officers. Also not particularly well trained. To remedy that, professional police were substituted for militia over a period of time:

"These "modern police" organizations shared similar characteristics:

(1) they were publicly supported and bureaucratic in form;

(2) police officers were full-time employees, not community volunteers or case-by-case fee retainers;

(3) departments had permanent and fixed rules and procedures, and employment as a police officers was continuous;

In the South Modern Policing grew out of the before mentioned Slave Patrols as these were reshaped to reflect "modern" notions of policing but kept their core function of oppressing blacks (before and after slavery ended) and enforcing the power of land-owners. [ibid] But North or South the development of policing:

"More than crime, modern police forces in the United States emerged as a response to "disorder." What constitutes social and public order depends largely on who is defining those terms, and in the cities of 19th century America they were defined by the mercantile interests, who through taxes and political influence supported the development of bureaucratic policing institutions. These economic interests had a greater interest in social control than crime control. Private and for profit policing was too disorganized and too crime-specific in form to fulfill these needs." [History of Policing Part 1]

Essentially these bureaucratic police departments were modeled on the British model of standing armies. The Constitution was created in part to regulate standing armies. And the tension between our chaotic local policing system and the Federal Design is driving much of our current climate. "Keeping Order" may be important, but if citizens are treated as if they were in occupied territory, then that is tyranny as enumerated in the Declaration of Independence.

Doctor Gary Potters in his 6 part series (quoted from part 1) describes how policing has tended to be oppressive, corrupt and with only the pretense of rule of law. He describes the evolution of policing from it's Slavery Enforcement and border repression roots to it's use in prohibition, to crush worker rights up the current time.